40 Kan. 571 | Kan. | 1889
Opinion by
This is a controversy between the divorced wife and the mother of Wilbur H. Titsworth, deceased, as to which one is the beneficiary of a benefit certificate issued by the Ancient Order of United Workmen of Kansas, for the sum of $2,000, on the order of said Wilbur H. Titsworth. The mother brought suit in the district court of Lyon county against the grand lodge of the order, to recover the amount named in the benefit certificate. The grand lodge, through its proper officers, came into court, admitted the death of Titsworth while a member of the order in good standing, and that there was due his legal representative the sum of $2,000; but stated that his wife also claimed to be his beneficiary, and offered to pay the money into court, and asked that the wife be substituted as the party defendant.- The court thereupon made an order allowing the grand lodge to pay the said sum of $2,000 into court and be released from any obligation respecting the same, and made Susan M. Tits-worth, the plaintiff in error, the party defendant. All this was done, and she filed an answer claiming the proceeds of the benefit certificate. The issues thus made were tried by a jury, at the February term, 1887, and they returned a general verdict for the mother, E. Nellie Titsworth. A motion for a new trial was overruled, and a judgment rendered on the verdict of the jury. Numerous errors are assigned in the petition, the most important being the overruling of a motion for a new trial; and this brings into review all the exceptions taken to the admission and against the rejection of evidence, certain instructions that are alleged to be erroneous, and various other matters that will be commented on.
In the determination of the various questions arising in this case, it must be constantly borne in mind that the Ancient Order of United Workmen, the association that issued the benefit certificate, is no longer a party, and is not taking any
In this case the Ancient Order of United Workmen is not incorporated under the laws of Kansas, but partakes of the nature of a voluntary association, governed in all matters by its own constitution and by-laws. It seems clear that the provisions of §76, chapter 93 of the Laws of 1871, do not apply, but that the regulations prescribed by the governing
“Any member holding a beneficiary certificate, desiring at any time to make a new direction as to its payment, may do so by authorizing such change in writing on the back of his certificate in the form prescribed, attested by the recorder, with the seal of the lodge attached, and by the payment to the grand lodge of the sum of fifty cents; but no change of direction shall be valid or have any binding force or effect, until said change shall have been reported to the grand recorder, the old certificate, if practicable, fifed with him, and a new beneficiary certificate issued thereon; and said new certificate shall be numbered the same as the old certificate: Provided, however, Should it be impracticable for the recorder to witness the change desired by the brother, attestation may be made by a notary public or an officer of a court of record, seal to be attached in- attest.”
At the time the deceased made a change in the beneficiary, he was on a sick-bed at Denver, Colorado, and he instructed a woman named Shipman, who was nursing him, on the 17th day of August, 1886, to write a letter to the presiding officer of his lodge at Topeka, changing the beneficiaries in his certificate from the divorced wife to his mother and brother, and then he instructed her to fill out the order on the back of his certificate, to make the benefit payable to his mother and brother. The woman signed his name both to the letter and the indorsement on the back of his certificate by his express direction, and these were mailed to his lodge on the 19th of August; they were received by the recorder of the lodge on the 23d day of August, and the new certificate issued. It ap
“A clause or by-law of an insurance or other corporation, pointing out a way in which the right to dispose of the insurance-money may be exercised, merely directory in its character, and whose object is to protect the corporation, cannot be taken advantage of by outside parties claiming the insurance. Such provisions are for the protection of the company alone, and can only be used by it.”
We know that there is some seeming conflict of authority on this question, and it may be suggested that the contrariety of opinion found in the books, if carefully examined and traced to its sources, will be found to have originated in the differences of parties to actions of this character. If the action is against the association to recover the amount due on the certificate, by a party to whom the direction of the benefit has been changed from an original certificate, and the association pleads that the new beneficiary has not been named in accordance with its rules and regulations, this presents one phase of the question.
The constitution of the grapd lodge of United Workmen of Kansas prescribes that upon the death of a master workman in good standing, who has complied with all the laws, regulations and requirements of the order, such person or persons as said member may have directed while living shall be entitled to receive of the beneficiary fund of the order the sum of $2,000. The beneficiaries are confined to one or more of the members of the family of the member, or some person or persons related to him by blood, or who shall be dependent upon him. The provision as to the change in the beneficiary has ah’eady been noticed. These certificates constitute a contract between the association and the member, and the right to change the direction of the benefit and to create new and
It is claimed that the act of Wilbur H. Titsworth in changing the benefit from his wife to his mother and brother was not voluntary, but was the result of undue influence on the part of the woman Shipman. The testimony respecting this is voluminous; but as the jury passed upon that question, and there is ample evidence to sustain the verdict, and it was approved by the trial court, it must be accepted as conclusive here. In the view we take, that under the constitution and by-laws of the order the member had a right to change the beneficiary in his certificate at pleasure, all the other errors complained of are immaterial.
It is therefore recommended that the judgment be affirmed.
By the Court: It is so ordered.